from the chilling-effects dept

I recently came across yet another story of copyfraud, but due to the nature of our litigious society and the way in which certain companies over-aggressively defend their rights, I need to prevent many of the details from being explained here, and have had to anonymize nearly everything. A family friend recently published a very interesting research paper on a popular topic. To demonstrate a certain point in the paper, he found a perfect image from a book that was published over 50 years ago. Again, to avoid identifying the situation, I cannot provide any more info, other than to say that this the image represented a tiny portion of a much larger work -- and that its usage without a doubt met all of the criteria of a typical fair use defense. The use was for non-profit educational purposes, it was a tiny part of a much larger work (and, in many ways, an inconsequential piece of that larger work, even if it was perfect for the point being demonstrated). The effect on the market for the original work was at worst nil, and at best positive, in that it might cause people to seek out the original work. In my review, it appears that the original work is now long out of print, and it is available only by collectors at an extremely high price. Thus, the use of the work is not for this person's financial benefit, and has absolutely no impact on the original publisher.

Even so, because we unfortunately live in a society where it's been drilled into our heads that you must get permission (even if the entire purpose of the fair use doctrine is for situations like this where no permission is needed), my friend reached out to the very, very large and well known conglomerate that holds the copyright on the original. He explained what he wanted to do and why, very clearly and concisely. The company's response was actually quite friendly, all things considered, and the person who responded appears to reject his request regretfully, noting that she is "in the unenviable position" of having to say no. The reasoning, the letter states, is that the work is protected by intellectual property laws and that the company "must be constantly vigilant and sometimes stringent in exercising control over their use."

There are significant problems with this. The whole point of fair use, again, is that these kinds of uses do not need permission. Furthermore, while trademark law does require some level of "vigilance," the same level of vigilance is not required for copyright law, and it is entirely possible to turn a blind eye to such usage and not lose the powers that copyright grants. Finally, there would be no harm at all in allowing this or even granting the guy a simple license. That would take away nothing from the company's IP rights.

But the bigger issue to me is actually the chilling effects that this situation has had. After sharing all of these details with me, I asked if he would be okay with me publishing the story with the full details. And he refused. Despite recognizing the near certainty of winning any legal dispute (as well as the fact that it is unlikely he would actually get sued), the very small risk alone is too much to bear. The idea that a massive global conglomerate might suddenly choose to sue this guy for some non-profit research he did out of personal interest -- just because of a single graphic to (humorously) illustrate a single point -- just isn't worth it. And that's the classic tale of a chilling effect of copyright law. Scaring people into not speaking up or not presenting their story.

from the now-would-be-a-good-time dept

The folks at dajaz1, who know better than anyone how copyright stifles culture and free speech, send in the news that Robert Poindexter of The Persuaders is suing 50 Cent for copyright infringement over a sample on a free album he released in 2009. This is likely to end in settlement, with a payout to Poindexter, because 50 Cent isn't offering any defense beyond the fact that the album was free. Unfortunately, this carries little to no legal weight. The courts have been unkind to sampled music over the years, as detailed in the excerpt we posted (part 1 and part 2) from this month's book club feature, Copyfraud. But, as dajaz1 explains quite clearly, sampling and remixing on free albums and mixtapes has always been an essential part of hip-hop, and is even embraced by labels:

This has been happening for many years on mixtapes and it’s quite common so 50′s attitude on this not shocking. Its the same attitude of every artist in urban music and it’s been like that from jump. In fact that’s why mixtapes are given away for free and not sold commercially. To put a bar code on a tape or sell it commercially violates many laws, but to give it away for free under the guise of “promotional use” has been the name of the game for decades and largely considered ok. This type of stuff is why these labels suddenly calling websites like us “rogue” for releasing them or trying to shut people down or put them in jail for making, releasing, or offering them for download has always been ridiculous. The attitude 50 is taking here is the same one every urban artist operates under and the promotional department of the major labels have been looking the other way on for years. Hell the major labels have been active participants. If you can’t clear the song you throw it out on a mixtape, or for free to radio mixshows and the blogs/internet as a freestyle/remix. Every major label artist that has made it in the rap genre has utilized these tactics so a loss in this case could be devastating not only to rap as a genre but the labels as well.

This is just another example of how copyright is totally out of sync with reality. This kind of activity is indispensable to culture, and it doesn't stop no matter what the law says—but it does get stifled, and driven underground, which is the opposite of what copyright is supposed to accomplish. As the chapter we posted from Copyfraud notes, several albums that are widely considered to be classics and important moments in music history (like Paul's Boutique or It Takes A Nation Of Millions To Hold Us Back) would be almost impossible to legally release today. Meanwhile, highly acclaimed mashups like The Grey Album are praised by the musicians whose work has been mashed, but are technically illegal and exist only as bootlegs by the grace (read: fear of bad publicity) of the record labels.

The big question is: can artists like 50 Cent do something about this? Hip-hop is one of the most popular and influential genres of music in the world, and its superstars command huge audiences. Most hip-hop fans don't realize that the genre is a legal minefield that exists because most artists cross their fingers and ignore the law entirely, while a rich few pay obscene royalties and settlement fees. Someone like 50 Cent is in the perfect position to raise more awareness of broken copyright law, and I hope that this attack on the lifeblood of hip-hop culture spurs him to do so.

from the ask-away dept

This month's Techdirt book club book is Copyfraud, by Jason Mazzone. If you missed them, we published some excerpts (part I and part II) earlier this month, and hopefully some of you have had a chance to dig into the full book. Over on our Step2 platform we're collecting questions and voting on them to send to Mazzone to kick off the discussion, which we'll have in a couple of weeks. You can, of course, also ask questions in the comments to this post, but we're using Step2 because it makes it much easier to track which questions get the most votes (and, if you have a login to Techdirt, it works there too, so you don't need to re-register or anything). We look forward to the discussion on this important aspect of copyright law that doesn't get nearly enough attention.

from the page-turner dept

Last week, we introduced this month's selection in the new Techdirt Book Club— Copyfraud and Other Abuses of Intellectual Property Law by law professor Jason Mazzone—and posted the first half of Chapter 3, which deals with Samples and Mashups and touches on some important moments in the history of copyright law (and hip-hop). Today we've got the second half of that chapter, which looks at the ongoing effects of the laws in this area on things like The Grey Album and the mashups of Girl Talk, and notes how it would be almost impossible to make an album like The Beastie Boys' Paul's Boutique today.

We'll be having our discussion with the author towards the end of the month, so there's still plenty of time to pick up a copy of the book. You can find it at Amazon in hardcover or ebook form (those are both affiliate links, so we get a tiny cut if you buy via them) or get it from lots of other sources. It's also available to check out from many libraries. Stanford University Press also has some ebook rental options. If you don't read the book but still want to participate in the discussion, you can still ask questions based on this sample chapter, as well as Jason's original paper on Copyfraud. He was also recently on the Surprisingly Free podcast discussing the book.

For now, enjoy the rest of Chapter 3! Don't forget to read the first half.

from the get-reading dept

We'll have our discussion with Rebecca MacKinnon about her book soon, but as we've now hit April, I wanted to get people started on the second book we'll be discussing as a part of the Techdirt book club. This time it's Copyfraud and Other Abuses of Intellectual Property Law by law professor Jason Mazzone. This is a really fantastic book that came out last year, detailing how the overclaiming of rights is a huge problem these days. "Copyfraud" is a term that Mazzone came up with, but which has really caught on as a way to describe those who claim IP rights that simply don't exist.

As part of this, we're posting one of the chapters from the book (in two parts, starting with this post).

Since this came up with the last book, I'll address this head on: the ebook pricing on this book is kind of ridiculous. The Kindle offering is $15. The "rental" option from SUP is $7, but you only get to have the book for two weeks. I realize that these prices are not what most people here consider reasonable for an ebook (and I recognize that the idea of renting an ebook for two weeks at $7 will seem crazy to most folks). I spent some time discussing this with SUP, and they said that Amazon will not allow them to create a temporary discount via the Kindle store for just this group (though they tried), and said that they're a small, non-profit publisher, so purchasing the book would be about supporting their mission -- and they do publish some great books. I recognize where they're coming from, and also recognize that this will not satisfy many of you. For those who still want to participate in the discussion, there will still be this chapter that we're publishing, as well as Jason's original paper on Copyfraud. He was also recently on the Surprisingly Free podcast discussing the book.

For future books, we are looking for publishers and authors who actually understand why pricing ebooks at insane levels does them more harm than good, but that's a very small group of publishers, massively limiting our choices, and forcing us to avoid certain books that I believe are well worth reading. If people have suggestions for future books, we're more than happy to look them over.

In the meantime, read on for the first excerpt from Chapter 3 of Jason's book. Chapter 3 is all about Samples and Mashups, which is definitely relevant to what we usually talk about here.

from the copyfraud dept

Back in 2008, we wrote about how Major League Soccer (MLS) was abusing the DMCA to take down video clips which it had absolutely no copyrights over (the event was not filmed or broadcast by MLS) because it didn't like the content (showing a fight that broke out at the soccer match). It appears that MLS has not learned that you cannot abuse the DMCA just because you don't like what the clip shows, as it appears to have done it again. Big time soccer fan (and big time free speech lawyer) Paul Alan Levy noticed recently that a YouTube clip showing Houston Dynamo player Colin Clark calling a ball boy a "faggot" for not throwing the ball to him properly, had been taken down via a DMCA copyright claim from MLS.

As Levy notes, the controversy around what happened resulted in a widespread discussion among fans about the incident, including comparisons to the recent controversy over racist statements by fans in the UK. It also resulted in a public apology from Clark. And yet, still, MLS took down the video.

Levy reached out to the guy who posted the video and sent a letter on his behalf, pointing out that MLS clearly broke the law in not considering fair use before issuing the takedown. The letter lays out why the 20-second video (from a 2-hour match) was clearly, without a doubt, fair use, and how the takedown violates the clear language of the DMCA. He notes that the guy who uploaded the video is a big MLS fan (as is Levy), and they don't want to burden MLS with a lawsuit, but would like MLS to take the following steps:

Explain how it made the decision to issue a DMCA takedown notice to YouTube.

Promptly inform YouTube that it is withdrawing its takedown notice.

Express regret to Mr. Vega for the takedown notice.

Put procedures into place to ensure that fair use receives full consideration before any takedown notice is issued.

Disclose publicly both what procedures have been adopted, and what standards MLS is providing to its representatives to ensure that they give proper consideration to fair use before issuing takedown notices in the future.

Seems like an easy way out, but who knows if anyone at MLS will even pay attention enough to care.

from the that's-depressing dept

As Congress is debating SOPA, it seems worth taking a look at how copyright holders are already abusing existing copyright law to take down content they have absolutely no right to. Cory Doctorow has a column concerning how the "real pirates" of YouTube may be the big entertainment companies, who have been using YouTube's ContentID system (not the DMCA) to "claim" a ton of public domain works:

FedFlix is a charitable project launched by Carl Malamud, a "rogue archivist" who raises funds to digitise and upload videos created at US government expense. Under US law, government creations are in the public domain and can be freely used by anyone, but the US government is remarkably lax about actually making its treasures available to the public that owns them.

Malamud's group pays the fees associated with retrieving copies from the US government – sometimes buying high-priced DVDs that the government issues, other times paying to have unreleased videos retrieved from government archives – and posts them to YouTube, the Internet Archive and other video sites, so that anyone and everyone can see, download, and use them.

Malamud's 146-page report from FedFlix to the Archivist of the United States documents claims that companies such as NBC Universal, al-Jazeera, and Discovery Communications have used ContentID to claim title to FedFlix videos on YouTube. Some music royalty collecting societies have claimed infringements in "silent movies".

I've embedded that full report below as well. As Doctorow notes, under the ContentID system, getting too many strikes can get you in trouble, but there apparently is no way to defend yourself by saying "this work is in the public domain." The closest may be that it's fair use, but fair use doesn't apply to the public domain (fair use is an exception to copyright law, but there's no copyright on public domain material).

There are two issues here. One is the general over-claiming of material by others. That's generally known as copyfraud and should be punishable, but rarely is. The second, perhaps bigger, point is how this ContentID system -- the kind of pre-monitoring system that the entertainment industry has been trying to foist on every user-generated-content site for the past few years -- isn't always so benign. It can clearly catch perfectly legitimate things, and that's a problem if we're trying to encourage the free flow of information.

But, of course, nothing gets done to fix any of this because, as Cory notes, "there is no organized lobby for the public domain." And that's sad. Because, realistically speaking, Congress should be the lobby for the public domain, as they're supposed to (I know, don't laugh) represent the interests of the public.

Diminished copyright exceptions via contract: Thanks to the digital era, the entertainment industry likes to claim that you no longer purchase content, you merely "license" it. Thus, they're able to establish their own rules to govern what you do with the content, rather than relying on the boundaries of copyright law. As such, for the most part, many have tried to (a) claim copyright/control over more than they have a right to (b) deny you any fair use exceptions and (c) deny you your first sale rights to resell the products you "bought." In other words, by claiming that the sale is a "license" rather than a "sale," companies are effectively able to wipe out the important limitations on copyright.

Regulatory capture: The article highlights how copyright policy these days appears to be almost entirely driven by the entertainment industry, who is merely one beneficiary of the law -- but not the intended beneficiary (that would be the public). He uses the examples of the recent "voluntary" (at the strong urging of the White House) agreement between ISPs and the entertainment industry, as well as SOPA, which he notes just takes those "private" powers to extend copyright law even further:

The Stop Online Piracy Act (SOPA), the companion bill to the Senate’s PROTECT IP Act, would further privatize adjudication and punishment. Title I of that law (dubbed the E-PARASITE Act) creates a “market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property.” It achieves this by empowering copyright owners who have a “good faith belief” that they are being “harmed by the activities” of a website to send a notice to the site’s payment providers (e.g. PayPal) and Internet advertisers to end business with the allegedly offending site.

The payment providers and advertisers that receive the notice must stop transactions with the site. No judicial review is required for the notice to be sent and for the payments and advertising curtailed—only the good faith representation of the copyright owner. Damages are also not available to the site owner unless a claimant “knowingly materially” misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice.

There is also a catch: a site owner who issues a counter-notice automatically consents to being sued in U.S. courts (a strong disincentive for sites based abroad). With few checks at all, SOPA gives copyright owners a sharp tool to disrupt and shut down websites. Based on their past conduct, there is no reason to think that copyright owners will use this tool with any measure of restraint.

After thinking about this article for a little while, it finally hit me what's going on. While the entertainment industry and its supporters keep claiming that they're "strengthening copyright," nothing could be further from the truth. All of this is about the industry killing copyright. They're wiping out everything that's actually important about copyright law.

Think about it: the beneficiaries of copyright law are supposed to be the public. The mechanism is through limited-time, government-granted monopolies. But all that matters in copyright law is if the public is benefiting. Things like fair use and the first sale doctrine were added to copyright law to make sure that copyright law benefited the public. But when you look at the two situations described by Mazzone, you realize that everything the industry is doing is to make sure that copyright law no longer benefits the public at all, but rather all of the benefits accrue solely to a few gatekeepers. They're not strengthening copyright law at all, they're killing it. They're making it something entirely different than what it's intended to do... and in the process they're harming the public.

That, of course, is a form of copyfraud, but since no one ever seems to get accused of such things, and the courts don't seem to care, news agencies and others can get away with such false copyright claims.

from the bogus-copyright-claims dept

You all know the routine. Towards the end of the sporting event you're watching, one of the announcers will remind the audience that the sports league in question holds the copyright, and you can't do a damn thing about it. It's slightly different per league, but the NFL one reads: "This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL's consent, is prohibited." We wrote about that a few years back when law professor Wendy Seltzer posted a clip of just that NFL warning to show how the NFL was exaggerating its rights... and got a takedown notice. The MLB one is a bit different. It reads: "Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited." We wrote about that one because one guy asked MLB for permission to describe a game to his friend, and MLB wouldn't give it. The FTC has been asked to stop sports leagues from making such overly broad (and legally misleading) claims, but hasn't done anything.

Of course, this has some questioning whether or not the FCC just did a rebroadcast or retransmission of an account of the game without (one assumes) express written consent of Major League Baseball. Of course, MLB's random attempts to enforce its bogus claims of ownership on data have all failed, and I'm sure it knows better than to take on the FCC in a losing cause, but it does a nice job of highlighting just how ridiculous the "warning" is from the MLB, and makes you wonder why the FTC doesn't crack down on what appears to be copyfraud.